More fundamentally, even if plaintiff's subsequent pleadings are viewed as amending the complaint to state a claim for injunctive relief, the merits of plaintiff's state law claims cannot be considered without first addressing issues raised by defendants in their motions to dismiss. Defendants assert, among other things, that defendant Florida Citrus Commission is immune from suit in this Court, that this Court lacks personal jurisdiction over six of the eight defendants, and that plaintiff's allegations fail to state an actionable claim under applicable state law or the federal antitrust statutes, the foundation of this Court's pendent jurisdiction over plaintiff's state law claims. Until those issues are resolved, consideration of the merits of the pendent claims would be premature. See Financial General Bankshares, Inc. v. Metzger, 220 U.S. App. D.C. 219, 680 F.2d 768, 773 (D.C. Cir. 1982) (if federal claims are dismissed at an early stage of litigation, pendent state claims should be dismissed as well).

Factual Background

Upon consideration of defendants' motions to dismiss for jurisdictional and pleading deficiencies, the Court must accept as true the factual allegations set forth in the complaint. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Those allegations, supplemented by documents introduced by plaintiff at the November 2, 1984 hearing, state the following:

Mizlou and FCSA, the successor corporation of the Tangerine Sports Association, Inc. ("TSA"), are parties to a contract entitled "Tangerine Bowl Television Rights Agreement" and dated November 12, 1980. Pursuant to that agreement, TSA granted to Mizlou the exclusive broadcast television rights to the 1980, 1981, 1982 and 1983 Tangerine/Citrus Bowls. Clause 15 of the Mizlou/TSA contract provided that TSA/FCSA could offer the right to cover the 1984, 1985 and 1986 games to competing broadcasters, but reserved to Mizlou the opportunity to match or better the offers of third parties under certain circumstances.
*fn2"

Subsequently, FCSA through defendant Hinely and NBC through defendant Cokin entered into an agreement whereby FCSA granted to NBC the rights to broadcast the 1984 Citrus Bowl and options to renew those rights in 1985 and 1986, under certain conditions.
*fn3"
As a result of that agreement, plaintiff alleges, FCSA received from the Florida Citrus Commission a "financial donation" which had been contingent upon NBC obtaining television rights to the Citrus Bowl games.

Against that background, plaintiff alleges that all of the defendants, including the designated officials of NBC and FCSA, acted in concert to bring about a breach of plaintiff's asserted contract right to match or better NBC's offer to cover the 1984, 1985 and 1986 Citrus Bowl games.
*fn4"
On a grander scale, plaintiff claims that the FCSA/NBC agreement is a product of NBC's "dominance of power and control" in the market for college football bowl games. Plaintiff depicts a scenario in which "smaller competitors" in that market, including Mizlou, develop bowl games to the point of significant profitability, only to be displaced when NBC expresses interest in televising the events. Complaint paras. 9, 18. In this instance, plaintiff claims, NBC and the other named defendants joined forces to replace Mizlou with NBC as Citrus Bowl broadcaster, with the intent and effect of impairing competition for bowl game television rights and creating a monopoly in the market for those rights. Complaint paras. 7-10, 18. Before considering whether these allegations state any actionable claim, the jurisdictional issues raised by the various defendants shall be first addressed.

Eleventh Amendment

Among the Florida Citrus Commission's several arguments is that as an arm of the State of Florida, it is not subject to the jurisdiction of this or any other federal district court. The Commission relies upon the recent Supreme Court decision of Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984):

"'An unconsenting state is immune from suits brought in federal courts by her own citizens as well as by citizens of another state. ' [Citations omitted] . . . . In the absence of consent, a suit in which the state or one of its agencies is named as the defendant is proscribed by the Eleventh Amendment."

Familiar principles of due process dictate that an out-of-state defendant (a description fitting all defendants to this action except NBC, which maintains a permanent office in the District of Columbia) may be haled into court only if there exist

'certain minimum contacts' [between the defendant and the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair place and substantial justice. '

Finally, the mere fact that FCSA retained counsel in the District of Columbia will not confer personal jurisdiction over that or any other defendant in an action not arising from the lawyer/client relationship. Were this an action by the attorney for recovery of fees, defendant's solicitation of a District of Columbia attorney would be jurisdictionally significant. See Mouzavires v. Baxter, supra, 434 A.2d 988; however, plaintiff here cannot claim that the fortuitous relationship between the Orlando-based FCSA and an expert in its counsel's District of Columbia office constitutes a "purposeful availment" of the benefits and privileges of this forum vis-a-vis this litigation such that any of these defendants could reasonably anticipate being haled before this Court. See generally Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958); see also Transamerican Steamship Corp. v. Somali Democratic Rep., 590 F. Supp. 968, 977 (D.D.C. 1984).

Despite conclusory assertions that NBC's conduct will restrain competition, plaintiff has alleged no specific impact on competition in any particular market. At one point in the complaint, plaintiff challenges NBC's conduct only as it affects competition for television rights to the Bluebonnet Bowl, Holiday Bowl, Hall of Fame Bowl and Citrus Bowl, only 4 of the 21 college football bowl games scheduled to take place at the end of the 1984 season. Complaint para. 18. That market definition is unduly narrow, as it excludes rights to numerous other bowl games which are "reasonably interchangeable" from the broadcaster's standpoint. See Brown Shoe Co. v. United States, 370 U.S. at 325; Southern Pacific Communications Co. v. American Telegraph and Telephone Co., 556 F. Supp. 825 (D.D.C. 1983), aff'd 238 U.S. App. D.C. 309, 740 F.2d 980 (D.C. Cir. 1984); Gianna Enterprises v. Miss World (Jersey) Ltd., 551 F. Supp. 1348, 1354 (D.N.J. 1982) (rejecting market definition which included only international beauty pageants but excluded state and national pageants).

For similar reasons, plaintiff's Section 2 claims of monopolization, attempt to monopolize, and conspiracy to monopolize must be dismissed. Plaintiff makes the conclusory assertion that the NBC/FCSA agreement is a "consequence of [NBC's] dominance of power and control", Complaint para. 9, but offers not a single fact to document NBC's supposed actual or probable market power. The omission is fatal -- an essential element of a monopolization claim is "the possession of monopoly power in the relevant market ", United States v. Grinnell Corp., 384 U.S. 563, 570, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966); that is, a Section 2 plaintiff must allege that the defendant has the power to control price and exclude competition generally in the relevant market. Id. at 571; Southern Pacific Communications Co., 740 F.2d at 1000. Even a claim of attempt to monopolize requires a plaintiff to plead facts alleging a dangerous probability that, if unchecked, the defendant's conduct will ripen into monopolization. Transource International, Inc. v. Trinity Indus., Inc., supra; Merit Motors, Inc. v. Chrysler Corp., 417 F. Supp. 263 (D.D.C. 1976), aff'd 187 U.S. App. D.C. 11, 569 F.2d 666 (D.C. Cir. 1977). Furthermore, a plaintiff raising claims of attempt or conspiracy to monopolize must allege a specific intent to monopolize on the part of the defendant. See e.g., Arthur S. Langenderfer, Inc. v. S.E. Johnson, 729 F.2d 1050 (6th Cir. 1984).

Plaintiff's complaint recites the proper conclusory verbiage but suffers from a paucity of facts. It does not identify the owner(s) of rights to any bowl game except the Citrus Bowl, nor does it contain a shred of data concerning NBC's market position relative to other television broadcasters, including the competing major networks. Absent any facts even hinting at an actual, imminent or intended concentration of market power in NBC alone, plaintiff's allegations do not state a claim under Section 2. See generally Havoco of America, 626 F.2d at 558 (plaintiff's "naked statement" that defendants conspired to establish one supplier as "dominant marketer" of goods, without supporting factual allegations, did not survive 12(b)(6) motion to dismiss).

Finally, the minimal factual allegations of plaintiff's complaint provide no basis for plaintiff's claim under Section 3 of the Clayton Act. Section 3 prohibits certain exclusive dealing or tied sale arrangements which "substantially lessen competition or tend to create a monopoly." 15 U.S.C. § 14. Even if the rights to broadcast the 1984 Citrus Bowl may be considered a "commodity" within the meaning of this provision, plaintiff has failed to allege facts, as distinguished from legal conclusions, indicating any decrease in competition in the market for those rights. The only effect of the NBC/FCSA contract discernible from the complaint is that NBC will cover the Citrus Bowl and Mizlou will not. Any tendency toward monopoly would depend on NBC's ability to drive out not only plaintiff, but all or nearly all other competitors. No facts submitted by plaintiff adumbrate such a threat, and from the face of the complaint a Section 3 injury to competition is not self-evident. See generally Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. at 488 (antitrust statutes -- including the Clayton Act -- guard against injury to competition generally, not mere injury to competitors).

In sum, the gist of this complaint is that Mizlou -- not the market -- has been wronged. Although we do not decide this today, it is, of course, possible that plaintiff may have a cognizable claim under tort or contract; however, the allegations before this Court simply cannot rise to the level of federal antitrust claims. Liberal use of the language of antitrust will not transform the cause of action -- "when stripped to its essential[s], the complaint does no more than state plaintiff's commercial disappointment", a matter grounded in state law. See Car Carriers, Inc. v. Ford Motor Co., supra, quoting Dunn & Mavis, Inc. v. Nu-Car Driveaway, Inc., 691 F.2d 241, 245 (6th Cir. 1982); see also Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d at 654.

(b). Pendent Claims

In light of the prompt dismissal of plaintiff's federal antitrust claims against NBC, principles of comity and federalism support dismissal of plaintiff's pendent state claims as well. See Financial General Bankshares, Inc. v. Metzger, 680 F.2d at 772. The interests underlying the doctrine of pendent jurisdiction -- "judicial economy, convenience, and fairness to litigants", United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); see also Rosado v. Wyman, 397 U.S. 397, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970) -- would not be served by this Court's retention of plaintiff's state law claims, inasmuch as this litigation has not progressed beyond the initial pleading and dispositive motions. See Financial General Bankshares, Inc., supra.

In accordance with the above discussion, it is, by the Court, this 30th day of November, 1984

ORDERED that:

1. Plaintiff's claims against defendant Florida Citrus Commission are dismissed in accordance with the Eleventh Amendment;

3. Plaintiff's claims against defendant National Broadcasting Company under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, and Section 3 of the Clayton Act, 15 U.S.C. § 14, are dismissed for failure to state a claim upon which relief can be granted; and

4. Plaintiff's pendent state law claims against defendant National Broadcasting Company are dismissed in accordance with principles of federalism and comity.

This cause stands dismissed.

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